Young adults (aged 18 or above and under 25 years) and the new early ILR concession: The good and the not so good

The Private Life category has never provided for a 5year route to settlement.

However, a freshly published new Concessionary Guidance now does.  It does so by reference to a tightly defined group of eligible persons.

The Guidance.(Concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain Version 1, 21 October 2021), applies to all decisions made from 20 October 2021.

WHAT IS THE 5YEAR OR 10YEAR ROUTE TO SETTLEMENT? 

Appendix FM provides 2 routes to settlement on the basis of family life as a partner or parent. These are a 5-year route and a 10-year route where:

  • the 5-year route is for a partner, parent or child who meets all the suitability and eligibility requirements of the Immigration Rules at every stage.
  • the 10-year route is for a partner, parent or child who meets all family life suitability and certain eligibility requirements and EX.1. applies under Appendix FM.

The route to settlement (5-year or 10-year) an applicant can qualify for, depends on whether all, some or no eligibility requirements are met.

Family life as a Partner:

All eligibility requirements must be met for a partner to qualify for entry clearance or leave to remain on the 5-year route.

Otherwise to qualify for entry clearance or leave to remain on a 10-year route:

  • an applicant must meet all eligibility requirements and rely on other sources of income to meet the financial eligibility requirement because there are exceptional circumstances in accordance with GEN.3.1. of Appendix FM
  • an applicant must meet some and qualify for an exception to the other requirements because EX.1.(a) or (b) of Appendix FM applies
  • an applicant meets some or no eligibility requirements but there are exceptional circumstances in accordance with paragraph GEN.3.2. of Appendix FM

Family life as a Parent:

All eligibility requirements must be met for a parent to qualify for entry clearance or leave to remain on the 5-year route.

Otherwise to qualify for entry clearance or leave to remain on a 10-year route:

  • an applicant must meet all eligibility requirements, and rely on other sources of income to meet the adequate maintenance and accommodation eligibility requirements because there are exceptional circumstances in accordance with GEN.3.1. of Appendix FM
  • an applicant meets some, but qualifies for an exception to certain eligibility requirements because EX.1.(a) of Appendix FM applies
  • an applicant meets some or no eligibility requirements but there are exceptional circumstances in accordance with paragraph GEN.3.2. of Appendix FM

Private life

The 10-year route is for:

  • those who meet all private life suitability and relevant eligibility requirements under Part 7 Paragraph 276ADE(1)
  • those who have exceptional circumstances

PRIVATE LIFE AND YOUNG ADULTS: WHAT IS THE POSITION UNDER THE IMMIGRATION RULES?

Prior to the new Immigration Rules being introduced on 9 July 2012, a published Statement of Intent: Family Migration, June 2012 provided as follows:

“PRIVATE LIFE

58.The Immigration Rules will provide a basis on which a person without family life can remain in the UK through long residence and social integration in the UK, consistent with the approach of Strasbourg and UK case law in this area. Those here lawfully for 10 years will continue to be able to qualify for settlement if they meet the requirements (under paragraph 276B(i)(a) of the Immigration Rules). The current 14 year long residence route to settlement for those in the UK lawfully or unlawfully will be abolished (paragraph 276B(i)(b)).

61.An applicant for leave to remain in the UK on the basis of private life must apply on the correct form and pay the relevant application fee. If they qualify, they will enter a 10 year route to settlement, consisting of four periods of 30 months’ leave to remain, plus a fifth application for indefinite leave to remain, if they qualify for it. Once on the route, applicants will have to make an application, on the correct form and paying the relevant application fee, at each further leave stage and for indefinite leave to remain.

62.To qualify for indefinite leave to remain after 10 years, an applicant must:

  • Have no unspent convictions; and
  • Demonstrate a knowledge of language and life in the UK by passing the Life in the UK test and by presenting a speaking and listening qualification at intermediate level (Common European Framework of Reference level B1) or above”.

Paragraph 276ADE(1) provides the requirements to be met for those applying on the basis of private life:

“Requirements to be met by an applicant for leave to remain on the grounds of private life

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK”.

Where an applicant meets the requirements for leave to remain on the basis of private life in the UK under paragraph 276ADE(1), the applicant will be granted leave to remain for a period of 30 months on the basis of private life under paragraph 276BE(1) of Part 7 of the Immigration Rules, on a 10-year route to settlement.

Young adults(amongst others relying upon paragraph 276ADE(1)):

  • If not eligible for a fee waiver, are expected pay substantial Home Office application fees at each further leave stage(during the course of the 10years) and for indefinite leave to remain.
  • Unless exempt, upon applying for indefinite leave to remain, are required to demonstrate a knowledge of language and life in the UK by passing the Life in the UK test and by presenting a speaking and listening qualification at intermediate level (Common European Framework of Reference level B1) or above.

PRIVATE LIFE AND YOUNG ADULTS: REQUESTS FOR EARLY ILR UNDER THE CONCESSION

The new guidance sets out the early indefinite leave to remain (ILR) concessions made to the Immigration Rules for applicants, in particular young adults (aged 18 or above and under 25 years, as in the Private Life rules), seeking leave based on their private life under Part 7 of the Immigration Rules. These are applicants who may have entered the UK as minors and have since been granted leave on a 10-year route to settlement either within or outside of the family and private life rules.

Special provision has therefore been made for young adults. This is on the basis that:

“…… for some cases the public interest factors which underpin the 10-year settlement policy – namely, the need to serve a longer probationary period before qualifying for settlement, and the principle of encouraging lawful compliance – may be less relevant. In particular, this may be the case for those applicants who were either born in the UK or entered as children (below the age of 18), but are now young adults (aged 18-24), who cannot be considered responsible for any previous non – compliance with immigration laws and are fully integrated into society in the UK. For these individuals it will not usually be proportionate to expect them to have to complete a longer (10-year) route to settlement. Where that is the case, they should be able to settle after 5 years’ continuous leave”.

Eligibility criteria for ILR under the Concession:

To be eligible to be considered under the concession, an applicant must (at the date of application):

  • Be aged 18 years or above and under 25 years of age and has spent at least half of his/her life living continuously in the UK (discounting any period of imprisonment);
  • Have either been born in or entered the UK as a child;
  • Have held five years limited leave; and
  • Be eligible for further leave to remain under paragraph 276ADE(1) of the Immigration Rules and have made an application under those rules.

A balancing of factors and the public interest factors:

Where an applicant meets the above criteria and requests an early grant of ILR the following factors are expected to be considered by the decision-maker:

These include (but are not limited to) the following:

  • the person’s age when they arrived in the UK
  • the length of their residence in the UK (including unlawful residence)
  • the strength of their connections and integration to the UK
  • whether unlawful residence in the past was the result of non-compliance on the part of the applicant or their parent/guardian whilst the applicant was under the age of 18
  • efforts made to engage with the Home Office and regularise status
  • any leave currently held and length of continuous lawful leave
  • any period of any continuous leave held in the past
  • whether (and the extent to which) limited leave to remain will have a detrimental impact on the person’s health or welfare

When considering these factors, decision makers are required to weigh the individual facts of each case against the public interest factors mentioned above (at page 4 of the Guidance): the need for 10-year route applicants to serve a longer probationary period before qualifying for settlement, and the principle of lawful compliance.

For all other applications outside the criteria for longer periods of leave or ILR the existing policy remains in place( the Family Policy, Family life (as a partner or parent), private life and exceptional circumstances) and applicants will be required to demonstrate particularly exceptional or compelling reasons to grant leave for a longer period or ILR.

A CRITIQUE

Some benefits:

It matters very much whether an individual is on a 5year or 10year route to settlement.

On the face of the Concession:

  • there is no need for an individual to submit more than one extension application following the initial 30months leave before becoming eligible for indefinite leave to remain
  • significant savings can be made in relation to providing for Home Office application fees at each stage of application extension. Currently, £2612.20 is required per applicant in relation to an extension of leave application (Home Office application fee and the NHS Surcharge).
  • Applying for naturalisation as a British citizen comes much sooner

It seems the requisite past five years limited leave could have been accrued either as a result of:

  • a grant under Paragraph 27ADE(1): i.e, the 7year Rule( Paragraph 27ADE(1)(iv) or as a young adult(Paragraph 27ADE(1)(v)
  • a grant under the family life provisions in relation to Appendix FM
  • a grant arising from exceptional circumstances

Relevant criteria is required to be met at the date of application:

Individuals seem not eligible under the Concession if an application for indefinite leave to remain is made before having held 5years limited leave –  all the relevant criteria is required to be met at the date of application.

The point at which consideration will be given to eligibility under the Concession seems to be when an application for further leave has been submitted.  Considering that an application for limited leave to remain(£2612.20) costs more than a settlement application( £2,389, excluding the £19.20 for the biometrics enrolment fee), no actual savings are being made.

Children under 18 cannot rely on the early ILR concession:

It is clear that the Concession does not apply to children under the age of 18. The rationale for this is provided for within the Concession Guidance:

“For children aged under 18, the current Private Life rule will still apply as in their case the circumstance of having spent time in the UK as a child but now having to apply as an adult does not apply. In their case the presumption is that they are seeking to live in the UK as dependents of their parents. Similarly, the concession does not apply to children and young adults when the parent, guardian or family member on whom they are dependent is applying, or is eligible to apply, under Appendix FM. They can be expected to continue to be granted leave in line with their parent, guardian or family member on who they are dependent”.

Exclusion from ILR  under the Concession of applicants now over 25 initially granted leave as young adults:

For some reason it was thought best to introduce a Concession rather than amend Paragraph 276ADE(1).

There are therefore now two different avenues by which young adults can seek to apply for indefinite leave, ie the 10year route via the Immigration Rules or the 5year route via the new Concession.

There seems to be no definition of “young adults” within Paragraph 6 of the Rules however Paragraph 276ADE(I)(v) itself is stated to apply only to applicants aged 18 years or above and under 25 years who have spent at least half of their life living continuously in the UK.

The Concession also requires that applicants for early ILR be aged 18 years or above and under 25 years of age.

On this basis, the Concession seems to exclude from its ambit, those young adults who previously applied under Paragraph 276ADE(1)(v) whilst under the age of 25 but on applying for further leave are now over this age. Such persons however should, absent adverse factors such as criminality, continue to be granted an extension of leave of 30month under the 10year route having regard to Paragraph 276BE(1), which states:

“Leave to remain on the grounds of private life in the UK

276BE(1). Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1) are met or, in respect of the requirements in paragraph 276ADE(1)(iv) and (v), were met in a previous application which led to a grant of limited leave to remain under this sub-paragraph. Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition”.

The restriction of the relevant eligible group to those aged between 18 and 24 within the concession is calculatedly deliberate. It excludes from its scope many applicants now aged 25 and over who were initially granted leave to remain based on Paragraph 276ADE(1)(v).

Grant of ILR will not necessarily follow even if the eligibility criteria is met:

It is not the case that a grant of ILR will follow where the relevant criteria is met and some applicable factors fall in an applicant’s favour.  A balancing exercise will be carried out. The Concession Guidance itself is clear that a period longer than 30months may be granted or ILR:

“Where one or a combination of these factors (at page 6) apply, a decision maker should consider the claim in the round and whether it remains proportionate to expect the applicant to have to complete a longer (10-year) route to settlement. Taken together, these factors may form a particularly exceptional or compelling reason to grant leave for a period longer than 30 months or ILR.

For example, where an applicant can show that they have held 5 years’ limited leave and that previous non-compliance with immigration requirements was not of their own choice or responsibility, because their overstaying was as a child or young adult under the age of 25, it may be appropriate to grant ILR on an exceptional basis”.

On the above basis, an applicant might find they are granted not ILR or 30months but a further extension of 3years leave instead( on top of the minimum 5yers already required to be accrued before the rest of criteria is  met).

Preparing an early request for ILR:

Applications by young adults placing reliance upon Paragraph 276ADE(1)(v), absent adverse history, are fairly straight forward to prepare. An effective easy flowing immigration background as well as sufficient amount of relevant documentary evidence as regards continuity and length of residence will usually suffice. However, applications by young adults requesting early ILR under the Concession will require much more considerable effort and thought.

Having regard to the factors that may be considered, there will be a need to set out within representations a detailed accurate chronology of events as regards the applicant’s past immigration history including that of those the applicant might have previously been dependant upon.

Representations which accompanied past leave applications will need to be in sight.

A Subject Access Request may also need to be made well prior to submission of an application which seeks to place reliance upon the Concession.

A statement prepared for the applicant may need to be provided addressing matters within their knowledge such as whether unlawful residence in the past was the result of non-compliance on their part or their parent/guardian whilst the applicant was under the age of 18, the efforts made to engage with the Home Office and regularise status and whether limited leave to remain will have a detrimental impact on the applicant’s health or welfare.